J-S53015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ERIC DAVID WEAVER, :

:

Appellant : No. 109 MDA 2015

Appeal from the Judgment of Sentence August 20, 2014,

Court of Common Pleas, Lebanon County,

Criminal Division at No. CP-38-CR-0000827-2013

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 09, 2015

Eric David Weaver (“Weaver”) appeals from the August 20, 2014 

judgment of sentence entered by the Lebanon County Court of Common 

Pleas following his conviction of attempted sexual assault.1 Upon review, we 

affirm.

On April 12, 2013, Weaver worked at a horse rescue and rehabilitation 

facility in Bernville, Pennsylvania with the twenty-year-old victim. N.T., 

4/9/14, at 4-5. It was a rainy day, and the owner of the business instructed 

the employees to take a long lunch and return to work around 3:00 p.m. 

Id. at 7. Weaver invited the victim to have lunch with him at his apartment, 

and she accepted. Id. According to the victim, she regularly had lunch with 

Weaver with or without her other coworkers, but she had never previously 

 

1

 18 Pa.C.S.A. §§ 901(a), 3124.1.
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been to his apartment. Id. at 7-8. They drove to Weaver’s apartment 

together in Weaver’s vehicle. Id. at 8.

At the apartment, the victim removed her shoes and one of the two 

sweatshirts she was wearing at the time. Id. at 9. They watched television, 

chatted and ate soup for lunch. Id. at 9. After she finished eating, the 

victim went into the kitchen to throw away her trash. Id. Weaver then

began pushing her into the bedroom. Id. at 9-10. She questioned what he 

was doing, and in response, Weaver instructed her to “just relax.” Id. at 

10. According to the victim, Weaver pushed her onto the bed in his 

bedroom, disrobed, and then removed her clothing. Id. at 11-12. She 

recalled being paralyzed with fear and unable to leave the room or to tell 

him to stop. Id. at 12. Weaver climbed onto the victim and laid on top of 

her, telling her that she is “so gorgeous,” and that he was “going to fuck 

[her] brains out.” Id. at 12-13. He touched and kissed her lips and cheeks, 

kissed, licked and sucked her breasts, digitally penetrated her vagina, and 

performed oral sex on the victim. Id. at 13-15. While this was occurring, 

the victim stated that she wanted to leave, but she was unable to get herself 

to move. Id. at 15. Finally, when Weaver began trying to penetrate her 

vagina with his penis, the victim was able to move herself and tried to push 

him off of her. Id. She told Weaver “no” and that she did not want to have 

sex with him, but he again told her to “just relax.” Id. at 15-16. In an 

attempt to stop the assault, the victim stated that she offered to “give him 
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[] a hand job or anything to make him stop,” but that Weaver declined. Id.

at 16. 

According to the victim, there was no discussion about the two 

engaging in sexual activity prior to the assault, and other than her offer to 

“give [Weaver] a hand job,” the victim did not reciprocate in any way or 

engage in any of the sex acts with Weaver. Id. at 18. After the assault, the 

victim got back into Weaver’s car and the two returned to work, where they 

finished their day. Id. at 19. Upon leaving for the day, the victim never 

returned to work at the horse rescue and rehabilitation facility. Id.

That night, the victim telephoned her mother and asked to move back 

into her parents’ house from the apartment to which she had recently 

moved. Id. at 19-20, 60. The day after that, the victim’s mother observed 

that she seemed depressed and was not eating. Id. at 61. Concerned 

because of the victim’s history of suffering from an eating disorder, she took 

the victim to Hershey Medical Center and then to Belmont Behavioral 

Hospital (“Belmont”) in Philadelphia for treatment. Id. at 62. 

While speaking with a counselor at Belmont, the victim disclosed for 

the first time that Weaver had sexually assaulted her. Id. at 20. The 

counselor reported the assault to the Philadelphia Police Department, which 

referred the case to the Pennsylvania State Police because the incident 

occurred in Lebanon County. Id. at 68. The victim had reported that the 

perpetrator was “Eric Cruz,” and Trooper Nathan Trate began his 
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investigation on May 3, 2013 by calling the victim’s place of employment to 

obtain the alleged perpetrator’s contact information. Id. The owner gave 

Trooper Trate Weaver’s cellphone number, who returned Trooper Trate’s 

message within two hours of his call. Id. at 69, 71-72. Although Weaver 

denied that he was Eric Cruz or that he knew an Eric Cruz, he admitted that 

he knew the victim and that he worked at the horse rescue and 

rehabilitation facility. Id. at 72. Weaver agreed to come in to speak with 

Trooper Trate, and ultimately did so on May 7, 2013. Id. at 73.

In the meantime, Trooper Trate met with the victim on May 4, 2013. 

Id. at 69. He described her as “distraught,” “very[,] very upset,” and 

observed her to be “shaking a little bit.” Id. at 69, 70. She was able to 

provide some details of the assault, but it was difficult for her to verbalize 

what happened, at times sitting silently for five minutes before answering a 

general question posed by the trooper. Id. at 70. Trooper Trate instead 

provided her with a written statement form, which the victim took home and 

returned to him several days later, at which time the trooper was able to ask 

her follow up questions. Id. at 70-71, 100.

When Weaver met with Trooper Trate on May 7, he informed the 

trooper that he was adopted and that he does sometimes go by Eric Cruz, as 

Cruz is his biological father’s last name. Id. at 76. After questioning 

Weaver as to why he denied that identity when they spoke on the phone, 

Trooper Trate uttered a date – April 24, 2013 (the date of the Philadelphia 
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Police Department’s report) – following which Weaver began to ramble on 

about the sexual encounter he had with the victim. Id. at 77-80. Weaver 

acknowledged that he had sexual contact with the victim at his apartment, 

but stated that it was consensual. Id. at 78-79. He contended that it all 

began while they were still at work, with the victim hugging and kissing him, 

and that she requested to go to Weaver’s apartment, as she was looking for 

an apartment and was contemplating moving in with him. Id. at 79, 84, 91. 

Weaver said that at the apartment, they “messed around a little bit,” 

meaning that they were “making out,” and that the victim agreed to 

accompany Weaver into his bedroom. Id. at 79-80. Weaver stated that the 

victim told him she did not want to have intercourse because she was not 

taking birth control pills, but Weaver later told Trooper Trate that the victim 

did not want to have sex because “she is a Christian.” Id. at 86-87. 

Weaver said that the victim offered to perform oral sex on him, but that he 

declined. Id. at 80. Weaver stated that he respected the victim’s wishes 

and did not pursue intercourse with her. Id. at 86, 90.

At the conclusion of the May 7 interview, Weaver agreed to come back 

in to take a polygraph examination, which occurred on May 20. Id. at 95-

96.2 Trooper Wesley John LeVan, II, conducted the examination and the 

pre- and post-examination interviews. Id. at 123. Following the polygraph 

 

2

 The jury was not made aware that Weaver participated in a polygraph 

examination or the results thereof.
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examination, Trooper LeVan informed Weaver that he failed and he began 

interrogating Weaver. Id. at 130. Trooper LeVan asked Weaver if he 

attempted to put his penis inside the victim’s vagina, and Weaver initially 

denied that he did this. Id. at 131-32. He subsequently admitted that “[h]e 

tried to poke it into her vagina a couple times” while they were “spooning,” 

but that the victim put her hand down to stop him from penetrating her 

vagina. Id. at 132. Weaver ultimately confessed to crawling down to the 

end of the bed, spreading the victim’s legs, and trying to penetrate her 

vagina with his penis even though he knew the victim “was not into this,” 

“she kept backing away,” and he “felt like he took advantage of her.” Id. at 

132, 134-36. Weaver stated that he knew he should have stopped, but “his 

hormones weren’t allowing him to stop[.]” Id. at 135. He further admitted 

that the victim did not request to perform oral sex on Weaver, but that 

Weaver “asked her for it ... [and] [s]he said no.” Id. at 137.

The Commonwealth charged Weaver with attempted rape, involuntary 

deviate sexual intercourse, sexual assault, attempted sexual assault, and 

two counts each of aggravated indecent assault and indecent assault.3 On 

August 16, 2013, Weaver filed an omnibus pretrial motion seeking 

suppression of the statements he made to the police on May 7 and May 20, 

 

3

 18 Pa.C.S.A. §§ 901, 3121(a)(1), 3123(a)(1), 3124.1, 3125(a)(1)-(2), 

3126(a)(1)-(2).
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2013. The trial court held a hearing on the motion on October 2, 2013. On 

January 20, 2014, the trial court issued an order denying the motion.

A jury trial convened on April 9, 2014, following which the jury 

acquitted Weaver of all charges other than attempted sexual assault. The 

trial court sentenced Weaver to five to ten years of imprisonment on August 

20, 2014. He filed a timely post-sentence motion on September 2, 2014, 

challenging the trial court’s denial of his pretrial motion and the sufficiency 

and weight of the evidence to support his conviction. The trial court denied 

the motion on December 12, 2014.

Weaver filed a timely notice of appeal and complied with the trial 

court’s order for the filing of a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). He raises the following issues for our 

review, which we reordered for ease of disposition:

I. Should [Weaver]’s [m]otion for [j]udgment of 

[a]cquittal be granted because the Commonwealth 

failed to present sufficient evidence at trial to prove 

beyond a reasonable doubt that [Weaver] attempted 

to engage in non-consensual sexual intercourse with 

the [v]ictim?

II. Should [Weaver]’s [m]otion for a [n]ew [t]rial be 

granted because the jury placed too great a weight 

on the testimony of the [v]ictim [] [?]

III. Should [Weaver]’s [m]otion for a [n]ew [t]rial be 

granted because the [t]rial [c]ourt erred by denying 

[Weaver]’s [o]mnibus [p]retrial [m]otion to 

[s]uppress [Weaver]’s statements to Trooper Trate 

and Trooper Le[V]an because [Weaver] was subject 

to a custodial interrogation without being advised of 
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[]his [Miranda4] rights, and [Weaver]’s statements 

were not given freely and voluntarily[?]

Weaver’s Brief at 4.

We begin with Weaver’s first issue, which challenges the sufficiency of 

the evidence to support his conviction. “Whether sufficient evidence exists 

to support the verdict is a question of law; our standard of review is de novo 

and our scope of review is plenary.” Commonwealth v. Tejada, 107 A.3d 

788, 792 (Pa. Super. 2015) (citation omitted).

We review the evidence in the light most 

favorable to the verdict winner to determine whether 

there is sufficient evidence to allow the jury to find 

every element of a crime beyond a reasonable 

doubt. 

In applying the above test, we may not weigh the 

evidence and substitute our judgment for the factfinder. In addition, we note that the facts and 

circumstances established by the Commonwealth 

need not preclude every possibility of innocence. Any 

doubts regarding a defendant's guilt may be resolved 

by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of 

fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its 

burden of proving every element of the crime beyond 

a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and 

all evidence actually received must be considered. 

Finally, the finder of fact while passing upon the 

credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part or none 

of the evidence.

 

4

 Miranda v. Arizona, 384 U.S. 436 (1966).
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Id. (citations omitted).

The Pennsylvania Crimes Code defines sexual assault as follows: “[A] 

person commits a felony of the second degree when that person engages in 

sexual intercourse or deviate sexual intercourse with a complainant without 

the complainant’s consent.” 18 Pa.C.S.A. § 3124.1. “A person commits an 

attempt when, with intent to commit a specific crime, he does any act which 

constitutes a substantial step toward the commission of that crime.” 18 

Pa.C.S.A. § 901(a). Thus, to convict Weaver of attempted sexual assault, 

the Commonwealth was required to prove (1) Weaver intended to engage in 

sexual intercourse with the victim; (2) without the victim’s consent; and (3) 

Weaver took a substantial step towards engaging in sexual intercourse with 

the victim without her consent.

Weaver contends that the evidence did not sufficiently establish that 

he attempted to commit sexual assault because “the testimony adduced at 

trial clearly established that after [the victim] said ‘no,’ when Weaver 

attempted to place his penis in her vagina that ultimately Weaver did not 

place his penis in her vagina.” Weaver’s Brief at 9-10. A conviction of 

attempted sexual assault, however, does not require proof of penetration. 

See, e.g., Commonwealth v. Pasley, 743 A.2d 521, 524 (Pa. Super. 

1999) (finding evidence sufficient to support conviction of attempted sexual 

assault where the defendant, “who was only wearing shorts, threw the 

victim on his bed, straddled her, pushed up her shirt and bra to her neck, 
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and attempted to unbutton her pants,” during which the victim scratched 

and punched the defendant until he bled). 

As the above summary of the evidence presented at trial reflects, the 

victim testified, and Weaver admitted to police, that he attempted to 

penetrate the victim’s vagina with his penis despite the fact that the victim, 

through her words and her body language, indicated that she did consent to 

sexual intercourse. N.T., 4/9/14, at 15-16, 132, 134-36. Weaver further 

admitted to police that he knew the victim did not want to engage in sexual 

intercourse and that he knew he should have stopped, but “his hormones 

weren’t allowing him to stop[.]” Id. at 135. As such, this argument does 

not entitle Weaver to relief.

Weaver’s second issue on appeal challenges the weight of the evidence 

to support his conviction, which we review according to the following 

standard:

A claim alleging the verdict was against the 

weight of the evidence is addressed to the discretion 

of the trial court. Accordingly, an appellate court 

reviews the exercise of the trial court’s discretion; it 

does not answer for itself whether the verdict was 

against the weight of the evidence. It is well settled 

that the [jury] is free to believe all, part, or none of 

the evidence and to determine the credibility of the 

witnesses, and a new trial based on a weight of the 

evidence claim is only warranted where the [jury’s] 

verdict is so contrary to the evidence that it shocks 

one’s sense of justice. In determining whether this 

standard has been met, appellate review is limited to 

whether the trial judge’s discretion was properly 

exercised, and relief will only be granted where the 
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facts and inferences of record disclose a palpable 

abuse of discretion.

Tejada, 107 A.3d at 795-96 (citation omitted).

Weaver’s sole argument here is that “the [victim]’s testimony was not 

credible[] and the [j]ury’s verdict was against the weight of the evidence in 

that the [j]ury placed too great a weight on [the victim]’s testimony.” 

Weaver’s Brief at 16. He does not point to any specific passage or portion of 

the victim’s testimony that was not worthy of belief. Moreover, he 

completely ignores the evidence presented of his confession to the police, 

which corroborated the victim’s testimony in support of his conviction. We 

therefore find no abuse of discretion in the trial court’s denial of his request 

for a new trial on this basis.

As his final issue on appeal, Weaver asserts that the trial court erred 

by denying his pretrial motion to suppress the statements he gave to the 

police on May 7 and 20, 2013. We review this issue to determine whether 

the record supports the trial court’s findings of fact and whether the legal 

conclusions drawn therefrom are correct. Commonwealth v. Garvin, 50 

A.3d 694, 697 (Pa. Super. 2012). We are bound by the trial court’s factual 

findings, but not by its legal conclusions, which we review de novo. Id.

Regarding his May 7 statement to police, Weaver states that Trooper 

Trate began questioning Weaver about the allegations and elicited 

“incriminating information from Weaver” prior to providing him his Miranda
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warnings during what he asserts was a custodial interrogation. Weaver’s 

Brief at 12. The trial court found that because Weaver was not subjected to 

a custodial interrogation on May 7, Miranda warnings were not required. 

Trial Court Opinion, 1/20/14, at 7; Trial Court Opinion, 12/12/14, at 12.

The law is clear Miranda warnings must be provided to a defendant 

only if he is subjected to a custodial interrogation. Garvin, 50 A.3d at 698. 

“[V]olunteered or spontaneous utterances by an individual are admissible 

without the administration of Miranda warnings.” Id. The United States 

Supreme Court in Miranda v. Arizona defined “custodial interrogation” as 

“questioning initiated by law enforcement officers after a person has been 

taken into custody or otherwise deprived of his freedom of action in any 

significant way.” Miranda, 384 U.S. at 444. Our Supreme Court has stated 

that a finding of custody is warranted if the defendant “is physically denied 

his freedom of action in any significant way or is placed in a situation in 

which he reasonably believes that his freedom of action or movement is 

restricted by the interrogation.” Commonwealth v. Cooley, __ A.3d __, 

2015 WL 4068720, *5 (Pa. June 15, 2015) (citation and quotation marks 

omitted). “The standard for determining whether an encounter is custodial 

is an objective one, focusing on the totality of the circumstances with due 

consideration given to the reasonable impression conveyed to the individual 

being questioned.” Id. 
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In arriving at the determination of whether the defendant was 

subjected to a custodial interrogation or the functional equivalent thereof, 

courts in this Commonwealth have identified several factors to consider: 

“the basis for the detention; its length; its location; whether the suspect was 

transported against his or her will, how far, and why; whether restraints 

were used; whether the law enforcement officer showed, threatened or used 

force; and the investigative methods employed to confirm or dispel 

suspicions.” Commonwealth v. Baker, 963 A.2d 495, 501 (Pa. Super. 

2008) (citation omitted). However, “[t]he fact that a police investigation has 

focused on a particular individual does not automatically trigger ‘custody,’ 

thus requiring Miranda warnings.” Id.

The record in the case at bar reflects that on May 7, 2013, Weaver 

came to the Jonestown barracks to meet with Trooper Trate, having been 

transported there by a friend. N.T., 10/2/13, at 25. Trooper Trate was 

wearing a suit, not a police uniform, and did not believe he was carrying a 

firearm at that time. Id. at 26. The interview took place in a ten-by-ten 

room and Weaver sat directly next to the door. Id. at 25. Weaver was not 

restrained in anyway; in fact, Trooper Trate informed Weaver both before 

and after the interview that he was free to leave. Id. at 27-28. Trooper 

Trate made no threats or promises during the interview. Id. at 28.

Other than the fact that the interview took place at a police station, 

nothing suggests that the interview was a custodial interrogation. Thus, we 
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have no basis to conclude that a custodial interrogation occurred prior to 

Trooper Trate administering Miranda warnings to Weaver on May 7, 2013.

Turning to his May 20 statement to police, Weaver acknowledges that 

he waived his Miranda rights prior to his polygraph examination. He 

asserts, however, that pursuant to this Court’s holding in Commonwealth 

v. Hill, 42 A.3d 1085 (Pa. Super. 2012), vacated, 104 A.3d 1220 (Pa. 

2014),5and, more specifically, the case upon which it relied, U.S. v. León–

Delfis, 203 F.3d 103 (1st Cir. 2000), which he contends is “analogous” to 

the case at bar, the statements made to police during and after the 

polygraph examination on May 20, 2013 should have been suppressed. 

Weaver’s Brief at 13-15. The trial court found that the statements made by 

Weaver during the polygraph and after the polygraph examination were 

admissible. Trial Court Opinion, 1/20/14, at 9-10.

Our review of León–Delfis reveals that it is far from “analogous” to 

the case before us, as Weaver contends. In León–Delfis, the defendant 

was under investigation concerning his involvement in an alleged conspiracy 

to embezzle money while an employee of the United States Department of 

Veterans Affairs in Puerto Rico. León–Delfis, 203 F.3d at 106. Federal 

 

5

 We note with disapproval that Weaver does not include any notation in his 

appellate brief that this Court’s decision in Hill was reversed by our 

Supreme Court. Indeed, despite the fact that our Supreme Court’s decision 

in Hill was authored prior to the notice of appeal in this case, neither the 

Commonwealth nor Weaver include any discussion regarding the reversal of 

this Court’s decision in Hill.
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agents requested that León–Delfis participate in a polygraph examination, 

and he agreed. Id. at 107. He signed two waiver of rights forms, neither of 

which included any indication that he would be subjected to post-polygraph 

questioning, and León–Delfis was not otherwise advised of the possibility of 

a post-polygraph interrogation. Id. at 107-08, 109. His attorney, who also 

was not informed that a post-polygraph interview would occur, was told the 

exam would take two hours, and so he returned to his office. Id. at 108. 

The exam actually took less than a half hour, following which the federal 

agent informed León–Delfis that he was not being honest and began 

interrogating him and, along with a second agent, interrogated him for an 

hour, at which point he confessed to his participation in the conspiracy. Id.

León–Delfis filed a motion to suppress his post-polygraph statement, 

which the district court denied. Id. at 108-09. On appeal, the first circuit 

court of appeals reversed, concluding, based on the totality of the 

circumstances, that “the district court erred in concluding that León–Delfis 

intelligently and knowingly waived his Sixth Amendment right to counsel for 

the post-test interrogation and that his confession was not admissible.” Id.

at 112. In so holding, the court considered “relevant facts” articulated by 

other federal courts examining this question, including “who requested the 

polygraph examination; who initiated the post-polygraph questioning; 

whether the signed waiver clearly specifies that it applies to post-polygraph 

questioning or only to the polygraph test; and whether the defendant has 
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consulted with counsel.” Id. at 111 (citing Wyrick v. Fields, 459 U.S. 42, 

47 (1982) (per curiam); United States v. Johnson, 816 F.2d 918, 921 n.4 

(3d Cir. 1987); United States v. Gillyard, 726 F.2d 1426, 1427–29 (9th 

Cir. 1984); United States v. Eagle Elk, 711 F.2d 80, 82 (8th Cir. 1983)). 

Applying these factors to the case before it, the court found that the federal 

agents requested the polygraph examination and initiated the postpolygraph questioning and that León–Delfis had counsel and was never 

informed about the possibility of post-polygraph questioning such that he 

could waive his right to counsel. Id.

Subsequent to the decision in León–Delfis, the United States 

Supreme Court decided Montejo v. Louisiana, 556 U.S. 778 (2009), 

wherein it held that a defendant’s waiver of his Sixth Amendment right to 

counsel may be valid in a custodial interrogation initiated by the police. Id.

at 794-96. This represented a departure in the law that existed at the time 

of the León–Delfis decision, as the United States Supreme Court had 

previously held in Michigan v. Jackson, 475 U.S. 625 (1986), overruled by 

Montejo, 556 U.S. at 797, that a criminal defendant could not validly waive 

his Sixth Amendment right to counsel in a custodial interrogation initiated by 

the police. Id. at 636; see also Hill, 42 A.3d at 1095 n.9. Thus, the 

Montejo decision has negated the first two factors enunciated in León–

Delfis. See Hill, 42 A.3d at 1095 n.9; see also Hill, 104 A.3d at 1248 n.3 

(Eakin, J., Concurring). 
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Applying the remaining two factors announced in León–Delfis to the 

case at bar, our review of the record reveals that it bears no resemblance to 

that case. Here, Trooper LeVan testified that he provided Weaver with his 

Miranda warnings prior to the polygraph examination, expressly stating that 

the examination encompasses both the pre- and post-test interviews. N.T., 

10/2/13, at 5-6. Furthermore, Weaver never requested counsel and was not 

represented, despite being informed of his right to counsel both during the 

May 7, 2013 interview and prior to the May 20, 2013 polygraph examination. 

See id. at 5, 11, 27-28. We therefore conclude that Weaver was not 

entitled to a new trial on this basis.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/2015